TAMMANNA GOWDA Vs. DY COMMISSIONER GULBARGA

JUDGEMENT

(1.) This petition has been filed by a person who is the owner of a land bearing No. 1-29-36 and 36A situate at Gulbarga. When the petitioner wanted to construct a garage in November, 1980 in the northeastern portion of the said property when excavation was going on, a box containing gold coins and ornaments was found. The petitioner claims to have brought to the notice of the authorities and also gave a notice as contemplated under Section 3 of the Karnataka Treasure Trove Act, claiming the treasure trove before the Deputy Commissioner. Four persons by name Mirza Javid Ali Baig, Khaiser Ali Baig, Mirza Imam Ali Baig and the petitioner filed claims as owner of the treasure trove. The Deputy Commissioner made an order under Section 8 of the Treasure Trove Act on 3/05/1982, rejecting the claim of the said persons and also the petitioner and held on the basis of the report of the Director of Archaeology made on 1/08/1981 that the coins were of Bahamani Kingdom and some of them were of Roman period and these coins had been burried for more than 100 years and therefore held that the property in question is a ownerless property and ordered for further steps in terms of the Act. Again another order was made by the Deputy Commissioner on 21-10-1983 noticing that there was discovery and seizure of Gold Coins weighing about 7.302 Kgs. found in the residential compound of the petitioner located in Sangameshwar Colony in Gulbarga and refers to the notification issued under Section 4 of the Act on 19/06/1981, pursuant to which three persons had made claim apart from the petitioner. The Deputy Commissioner notices the order made by his predecessor on 3-5-1982 declaring the treasure trove in question to be the ownerless property and thereafter referred the matter under Section 12 of the Act, on the basis there was a dispute amongst 2 or more persons, to the Civil Court. As the matter had to await the determination in a Civil Court as to the ownership thereof, he stayed the further proceedings until the Civil Court gave a finding. A Civil Suit instituted by the petitioner in which the said four persons were impleaded as defendants and those four persons remained ex parte and a decree was passed in favour of the petitioner stating that he is the owner of the place where the treasure was found and plaintiff is also entitled for the above treasure as notified in the notification. Thereafter on 2-12-1985 another order was made holding that the petitioner is only a finder of the treasure and he is entitled to Rs. 1.00 lakh since the approximate metal value of the treasure found is worth more than Rs. 11,70,000-00. The amount or value of the treasure found in excess of Rs. 1,00 lakh is at the disposal of the Government. The petitioner is calling in question this order made by the Deputy Commissioner and claims that the property should be entirely given to the petitioner relying upon several decisions namely, Manager of Hampi Sri Virupaksha Swami Temple v. Lambani Golya, (1908) ILR 31 Mad 397; S. Iqbal Singh Chadha v. Collector, Hoshiarpur, AIR 1956 Punj 235 etc. In the Hampi Virupaksha Swami Temple's case it was noticed that Section 3 of the Indian Treasure Trove Act defines treasure trove as anything of value hidden in the soil or in anything affixed thereto. Property not hidden is not treasure trove and is not governed by the provisions of the Act. Unclaimed articles not found hidden are the property of the person on whose land they are found unless they are found in a public place in which case they belong to the finder. Under the English law the possession of land carries with it possession of everything which is attached to or under the ground and in the absence of a better title the right to possess it also, except in the case of articles found in a public place, which is also the law in India. In England where the article is hidden, the fact of being so hidden is taken to show that the owner did not intend to abandon it, and when it was subsequently found hidden, and the owner is not forthcoming, the law gives it as bonum vaccum to the Crown".

(2.) In spite of this enunciation of law, the learned Counsel for the petitioner relied upon a decision of the Punjab High Court in the case of S. Iqbal Singh Chadha v. Collector, Hoshiarpur, AIR 1956 Punj 235. In that decision scope of Sections 11 and 12 of the Treasure Trove Act, 1878 is explained. It is stated therein that the said provisions should come into operation only when the property is declared to be ownerless under Section 9 of the Act. Section 15 thereof would become operative when the claimant other than the finder files a suit in a Civil Court and obtains a decision from a Civil Court. Where claimants did not obtain a decision from the Civil Court it should be held that the order of the Collector holding that the treasure belongs to a certain person or that it is found in the land belonging to certain person is vitiated, is apparent on the face of the record. It is therefore necessary to examine the scheme of the Act.

(3.) Under Section 3 whenever any treasure exceeding in amount or value of Rs. 10/- is found, the finder has to give notice in writing to the Deputy Commissioner containing the details as to the nature and amount or approximate value of the treasure, the place in which and the circumstances under which it was found and the date of the finding and thereafter the same will have to be deposited in the treasury or give it to the Deputy Commissioner for being deposited at an appropriate place. Thereafter the Deputy Commissioner would notify under Section 4 of the Act giving particulars of the finder's name and other particulars of the owner or the occupier of the land in which the treasure was found, the nature and details of the treasure, the approximate value of the treasure, the place in which and the date on which the treasure was found, the origin and surroundings of the treasure. The notification will also include the particulars referred to in the notice issued under Section 3 of the Act and requiring all persons claiming the treasure or any part thereof to appear before the Deputy Commissioner within the specified time in person or through an agent. In the event the Deputy Commissioner finds that the treasure was in possession of or belonged to some person other than the finder, the Deputy Commissioner will also serve on such person and the finder a copy of the notification. Under Section 5, it is provided, any person having any right to the treasure notified under Section 4 or any part thereof, as owner of the place in which it was found or otherwise, and not appearing as required by the notification issued under Section 4, shall forfeit such rights. The Deputy Commissioner will have to make an enquiry under Section 6 of the Act, after hearing the parties concerned who intend to appear before him and after such enquiry as he may deem necessary, determine (1) the person by whom, the place in which, and the circumstances under which, such treasure was found and (2) as far as is possible, the person by whom, and the circumstances under which, such treasure was hidden. If upon enquiry made under Sec. 6, the Deputy Commissioner considers that there are reasons to believe that the treasure was hidden within one hundred years by the date of finding and claiming such treasure or by some other person under whom such person claims, the Deputy Commissioner shall adjourn the case for such period for being allowed to suit being filed in the Civil Court and on the establishment Of such right the Deputy Commissioner may award the finder a reward not exceeding one-fourth of the value of the treasure which shall be paid to the claimant establishing his rights. This provision of Section 7 will not be attracted, but the treasure will have to be declared ownerless in certain cases as provided under Section 8 of the Act. Under Section 8 it is provided if upon enquiry, the Deputy Commissioner considers that the treasure was hidden beyond one hundred years before the date of finding by a person referred to in Section 7(1) of the Act or where a period is fixed under Section 7(1) of the Act to institute a suit and no suit is instituted within such period or if such suit is instituted within such period, and the plaintiffs' claim is finally rejected, the Deputy Commissioner may declare the treasure to be ownerless. When a declaration is made under sub-section (1) thereof, report will have to be sent to the Government and an aggrieved party will have to file an appeal against the declaration made by the Deputy Commissioner within 60 days thereafter to the Mysore Revenue Appellate Tribunal and subject to such appeal every such declaration should be final and conclusive. Chapter III pertains to disposal of treasure declared as ownerless. Section 9 provides that the property declared to be ownerless shall be disposed of as provided under Chapter III. When a declaration has been made under Section 8 in respect of any treasure and no person other than the finder of such treasure has appeared in an enquiry under Section 6 and claimed the treasure or a part thereof as owner of the place in which it has been found or otherwise, the Deputy Commissioner shall subject to the provisions of Section 14 deliver such treasure to the finder thereof. When only one such person claims and his claim is not disputed the treasure to be divided between the owner of the place and the finder. Under Section 12 it is provided that when two or more persons appear in an enquiry under Section 8 and each of them claimed as owner of the place where such treasure was found or otherwise or the right of any person so appeared and claimed is disputed by the finder of such treasure, the Deputy Commissioner shall retain such treasure and shall make an order staying his proceeding with a view to the matter being enquired into and determined by a Civil Court. Within thirty days from the date of the order under Section 12, a person claiming right may institute a suit in a Civil Court to obtain a decree declaring his right and if any such suit is instituted and the plaintiffs claim is finally established, the Deputy Commissioner subject to the provisions of Section 11 divide the treasure between him and the finder. If in cases referred to in Section 10 or Section 13(3), the amount or value of the treasure found exceeds one lakh of rupees, the Deputy Commissioner delivers so much of the treasure as is of the amount or value of one lakh of rupees to the finder and declare the excess to be at the disposal of the Government. The Government has also power to acquire on behalf of the Government the treasure under Section 15 of the Act by paying compensation in a sum equal to the value of the treasure or portion, together with one-fifth of such value.